Should the Medical Council be Independent?

In October 2005, a Joint submission was made by a group of doctors requesting the Medical Council of Hong Kong (MCHK) to review the provisions of the Code on practice promotion, on the basis that the provisions infringed the freedom of expression guaranteed under the Basic Law and the Hong Kong Bill of Rights Ordinance.

However, the Medical Council could not satisfy the request of the Joint submission for known reasons. On 10 April 2006, Dr Kwong Kwok Hay obtained leave to apply for judicial review from the Honorable Mr. Justice Reyes. The application was heard on 31st July 2006 in the Court of First Instance of the High Court. The Medical Council was represented in the Court by a Senior Counsel, instructed by the Department of Justice (DoJ).

When the Judgment was handed down on 11th August 2006, the Judge ruled in favor of Dr. Kwong on all the 4 challenged restrictions on Practice Promotion.

On 20th September 2006, Apple Daily reported on the unwillingness of the DoJ to finance the appeal of the MCHK against the High Court ruling even though there was unanimous support from members of the MCHK for the Appeal. In the commentary, it was reported that the HKSAR Government, represented by the DoJ, considered MCHK to be completely independent. As such, it would not interfere with the running and business of the MCHK. And as such, the DoJ would like to leave the appeal for the MCHK to decide herself.

What a great lie the DoJ has uttered to the public? What a big fool that DoJ has become of if she said that the MCHK was totally independent and at the same time, she had shouldered the legal cost for the MCHK in the Court of First Instance of the High Court! The DoJ should have washed her hands clean from the very first beginning. Why did the DoJ fund the court case in the first instance and not in subsequent appeal? It looks as if the DoJ did selectively interfere with the decision and running of the MCHK.

The worst thing is that the MCHK established under the Medical Registration Ordinance does not have a financial account of her own. The HKMC does not have any fund in hand. MCHK simply cannot appeal without the financial commitment of HKSAR. The hands of the MCHK are simply tied up by the HKSAR government.

What is the meaning of an independent MCHK when 14 of her 28 members are being appointed by the Government? What is the meaning of an independent MCHK when the profession looks at it as though working in a ¡§black box¡¨ which is controlled by the HKSAR government under the disguise of protecting the public health?

Actually, the Government did want the MCHK to be more independent for years, even before 1997. It was said that there was a discussion paper in the Government years ago on such matter. However, it is not realized because some senior members of the Profession are afraid of the ¡§huge¡¨ financial burden to every member of the profession. It was said that the expenses for litigation are enormous and should not be shouldered by members of the profession, especially those young doctors.

However, this is the price to pay when we want independence. This is the only way that we can remove most of the appointed members of the MCHK who exercise regulatory and disciplinary power for the Profession. We believe that the MCHK must be reformed in this direction. Actually we can create our own MCHK taking reference from the experience of most of the professionally registered and independent Associations or Councils in Hong Kong. Only with this move would our Professional Autonomy be saved. We treasure our members¡¦ discussions on this issue and please reply to the enclosed Circular no. 0752 on the issue of ¡§Should the Medical Council be Independent?¡¨

Dr. Yeung Chiu Fat Henry